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D. Joint Presentations

21 E. Organizing the Hearing

22 F. Committee for Interim and Emergency Procedures... 23 G. Telephone Conference

23 H. Additional Conferences

24 1. Trial Briefs or Opening Statements.

24 J. Interlocutory Appeals ...

24 K. Affirmative Action by Judge to Develop the Record

25 V. INTERVENTION AND PARTICIPATION BY NON-PARTIES

26 A. Intervention

26 B. Limited Participation

27 VI. HEARING

29 A. Preparation

29 1. Place of Hearing :

29 2. Notice

29 B. Mechanics of the Hearing 1. Transcript

30 2. Judge's Opening Statement

31 3. Appearances and Preliminary Motions

31 4. Presenting the Case a. Direct Presentation

32 b. Receipt of Exhibits

32 C. Cross Examination

33 d. Rebuttal Testimony

35 e. Redirect

35 f. Questions by the Judge

35 g. Closing the Presentation

35 5. Rules of Evidence

36 a. Hearsay

36 b. Opinion Evidence

37 C. Best Evidence

37 6. Offers of Proof

37 7. Self-Incriminating Testimony

38 8. Argument on Motions and Objections

38 9. Confidential Information

38 a. Executive Session

38 b. Other Methods of Handling Confidential Material

40 10. Supplemental Data

41 11. Mechanical Handling of Exhibits

42

31

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C. Closing the Hearing

1. Oral Argument
2. Briefs
3. Notice of Subsequent Procedural Steps
4. Closing the Record
5. Correcting the Transcript

6. Indexing the Record ... VII. TECHNIQUES OF PRESIDING

A. Preparation and Concentration
B. Judicial Attitude, Demeanor, and Behavior.
C. Controlling the Hearing
D. Some Common Problems
E. Hearing Facilities
F. Hearing Hours
G. Recesses and Promptness
H. Audio-Visual Coverage
I. Taking Notes

J. Off-the-Record Discussion
VIII. CONDUCT

A. Confidentiality
B. Ex Parte Communications
C. Entertainment and Fraternization
D. Individual Requests for Information

E. The Media
IX. THE DECISION

A. Oral Decision
B. Written Decision

1. Format
2. Research
3. The Decisional Process

43 43 43 44 44 44 45 47 47 48 50 52 54 55 56 56 57 58 59 59 59 60 61 61 62 62 63 63 65 66 70 71 73 73 73 74 76 77

4. Style

.

C. Issuance of Decision
X. CLAIMS AND ENFORCEMENT CASES
A. Personal Claims Cases

1. Social Security Claims Cases—In General.
2. Hearing Procedure

3. Special Problems B. Enforcement Cases

1. Starting a case
2. Assignment of Judge
3. The Prehearing Conference
4. Subpoenas and Depositions
5. The Hearing

78 79 79

83

APPENDICES

81 APPENDIX 1-NOTICE OF PREHEARING CONFERENCE.. 82 APPENDIX 2—NOTICE OF PREHEARING CONFERENCE.. APPENDIX 3-APPEARANCE SHEET

84 APPENDIX 4-PROCEDURAL RULES

85 APPENDIX 5-REPORT OF PREHEARING CONFERENCE.. 87 APPENDIX 6—INTERLOCUTORY ORDER

91 APPENDIX 7-PREHEARING INSTRUCTIONS

92 APPENDIX 8-SUBMISSION OF APPEAL TO THE AGENCY

BY THE ADMINISTRATIVE LAW JUDGE... 93 APPENDIX 9-ADMINISTRATIVE LAW JUDGE'S QUESTIONS

94 APPENDIX 10—ORDER GRANTING, DENYING, AND

DISMISSING PETITIONS
TO INTERVENE

95 APPENDIX 11—NOTICE OF HEARING

97 APPENDIX 12—REQUEST BY JUDGE FOR PERSON TO APPEAR AS WITNESS

98 APPENDIX 13-PRESIDING JUDGE'S INSTRUCTIONS FOR BRIEFING

99 APPENDIX 14-ORDER CORRECTING TRANSCRIPT

101 APPENDIX 15—ERRATA SHEET

102 APPENDIX 16_CURRENT 1973-74 ADDRESSES AND

TELEPHONE NUMBERS OF THE
REGIONAL OFFICES OF THE PUBLIC
BUILDING SERVICE OF THE GENERAL
SERVICES ADMINISTRATION

.. 103 APPENDIX 17–COURT OF CLAIMS INQUIRY RE FURTHER PROCEEDINGS

104 BIBLIOGRAPHY—Trial Manuals

109 Pamphlets and Periodicals

109 Procedural Rules

110 ADMINISTRATIVE PROCEDURE ACT

113

Preface

This Manual describes procedures and tools which may be used by Federal Administrative Law Judges in formal administrative proceedings. It should help both the new Administrative Law Judge entering the profession and the experienced Judge in meeting new problems and situations. It may also assist private and government counsel who appear before them.

Some agencies have developed manuals designed for their own Judges, with specific reference to their own statutes, rules, and practices. The present treatise has drawn upon such manuals, but is not intended as a substitute for them. It describes general procedural techniques that are used by, or can be applied to, many agencies — but not all can be applied to each. It should be understood throughout, whether specifically stated, that all suggestions and recommendations are subject to pertinent statutes and to the rules and official practices of each agency.

This Manual is intended to apply to "the typical formal administrative proceeding”, with some special discussion of problems peculiar to the personal claims case and the enforcement case. Although it is not specifically designed for the protracted proceeding, it will probably be most useful there; but the problems and difficulties it addresses exist as wellthough in lesser degree in the simple case. The basic organization of the Manual is chronological, with each procedural technique discussed at that point in the process at which it is

most useful. The table of contents has been set forth in sufficient detail that it may also serve as an index.

The primary source for the ideas contained in this treatise is 28 years of experience as an Administrative Law Judge at the Civil Aeronautics Board. Some of the emphasis and the case citations may reflect this background; but I have supplemented it by consulting Administrative Law Judges in all Federal agencies, agency staff, and private attorneys.

The message of this treatise is the Judge's obligation to manage and govern the proceeding from assignment to decision. This is perhaps the most important of his functionsbecause unlike the decision itself, if it is not done correctly it cannot be readily repaired. Of course, fairness comes first. However, unless the presiding Judge organizes and controls the entire proceeding, especially the protracted one, in an expeditious manner, the raw material for the agency decision will be so cumbrous and unwieldy that justice will be unnecessarily delayed and sometimes denied. I am fully aware that the uniqueness of each case makes it impossible for a manual such as this to provide definitive answers; at most it can provide generalized suggestions which will have to be applied flexibly and sensibly. My efforts will be sufficiently rewarded if they stimulate each Judge to devise new procedures and adapt old ones to meet the novel problems that the administrative process continually presents.

I express the greatest appreciation for the complete support and help of the staff of the Administrative Conference of the United States, particularly Chairman Antonin Scalia, Research Director Robert W. Hamilton, Executive Director John F. Cushman, and Myles Glasgow without whose help I could not have completed this Manual. Also, Betty Palmer of the Conference staff deserves special mention for her patient

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